Letter from European Centre for Law and Justice to UN Secretary-General Guterres re: Palestinian decision to accede to various international treaties and conventions

"On 6 December 2017, the U.S. Trump Administration formally recognised Jerusalem as the capital of Israel and stated that it would begin the process of moving the U.S. embassy from Tel Aviv to Jerusalem. That was a lawful act by a sovereign State, subject to neither censure nor approval by foreign powers. Soon thereafter, in a fit of pique and as an attempt to retaliate against the U.S. decision Mahmoud Abbas, chairman of the Palestinian Authority (PA), announced that the PA intended to accede to 22 different international conventions and agreements in response to the U.S. action. For a variety of reasons, including, but not limited to, the PA's inability to accede to such treaties as a "state" (since it fails to meet minimal criteria for statehood under customary international law), its wholly disingenuous and illegitimate reasons for signing on to such agreements, and its clear breach of the Oslo Accords in doing so, Palestinian accession to such agreements must be rejected. To do otherwise would undermine the terms of the agreements to which the PA purported to accede.

A. There is currently no Palestinian 'State" able to sign conventions

Despite the General Assembly vote to change the PA's status at the UN from "Entity" with Observer status to "Non-Member State" with Observer status, no actual legal change has occurred with respect to the creation or existence of a Palestinian "State".

Under the UN Charter, the General Assembly has no lawful authority whatsoever to create or recognise a "State". The UN does not officially recognise states or declare statehood; such actions are the responsibility of individual governments. Further, when the States of the world gather together to make decisions as members of the UN General Assembly, they are bound by the explicit terms of the UN Charter as to what they may do. Hence, were the General Assembly to attempt to either create or recognise a "State", its actions would exceed its authority under the Charter and would be ultra vires...

The four indicia of statehood set forth in the Montevideo Convention are considered to reflect the requirements for statehood under customary international law requirements that the PA has never met (i.e., either before or after adoption of the status change resolution by the General Assembly). In light of the fact that the PA fails to meet the Montevideo criteria, "Palestine" simply cannot be a "State", no matter how many UN Member States assert that it is or would like it to be and notwithstanding the prior UN Secretary.General's contrary belief when he forwarded the Palestinian document of accession to the Registrar of the International Criminal Court. In order to be a "State", certain facts on the ground must exist; such facts are wholly lacking in the case of Palestine.

Consequently, under customary international law, no Palestinian "State" currently exists. Accordingly, no Palestinian official may lawfully sign any international agreement that requires that signatories be States. As was aptly noted by former PA spokesman Ghassan Khatib concerning Palestine, "[w]e have too many symbols of a state, what we lack is attributes of a state". This sentiment was echoed by PA Prime Minister Fayyad's assertion that the General Assembly resolution constituted "powerful symbolism"' as opposed to actual statehood. Even PA leader Mahmoud Abbas has himself conceded that there is no Palestinian state. For example, as he announced in late 2016, 2017 would be "the year of the independent Palestinian state." It clearly makes no sense to express one's hopes of attaining something in the future if one already possesses it.

B. The conventions arc not being signed in good faith

PA officials have made it clear that their signing of these international conventions has nothing to do with a genuine interest in upholding the norms contained within them, but is merely being done in reprisal for the United States' decision to recognise Jerusalem as Israel's capital and move its embassy from Tel-Aviv to Jerusalem. A similar thing happened in 2014 when the PA was upset with Israel over issues involving the release of prisoners. Should the PA's accession to these agreements be permitted to occur, the meaning and value of such agreements will be forever cheapened and tarnished. As long as the PA treats international instruments with cynicism and disrespect-i.e., purely as another means to pursue its political agenda-then those charged with administering such treaties must be diligent in ensuring that the character and solemnity of these instruments remains intact by refusing to allow the PA to accede lo them purely for political reasons...

C. Signing of the conventions violates the Oslo Accords

The 1993 Declaration of Principles and subsequent agreements (the Oslo Accords) signed by then Israeli Prime Minister Yitzak Rabin and then-PLO Chairman Vasser Arafat and witnessed by representatives of the United States, Russia, Egypt, Jordan, Norway, and the European Union, stated, inter alia, that there would be ongoing and meaningful final status negotiations between the two sides that would be pursued in good faith. Among the issues to be negotiated were the borders of a future Palestinian State as well as the status of Jerusalem. The PA is continuing to ignore this essential aspect of the Oslo Accords and continues to try to advance its status unilaterally while avoiding genuine peace negotiations...

For all the above reasons, we strongly and respectfully urge you to exercise your authority to disqualify the PA from signing on to the treaties in question."

Date

January 10, 2018

Title

Letter from European Centre for Law and Justice to UN Secretary-General Guterres re: Palestinian decision to accede to various international treaties and conventions, ACLJ.org